Date: 20000517
Docket: IMM-1257-99
Between :
TUAN RAMAIYAN AHAMADON
GNEI AZMARA AHAMADON
GNEI SEENAR AHAMADON (a.k.a. Anei Seenar Ahamadon)
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicants seek judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated February 10, 1999, in which the Board determined that the applicants were not Convention refugees.
[2] The Board found it implausible that the Sri Lankan Air Force (SLAF) would test the male applicant's loyalty by ordering him to supervise the abduction of the two Tamils. First, the Board's knowledge of Sri Lankan claims and the documentary evidence indicates that the Sri Lankan Army (SLA) carries out the arrests and detentions of Tamils. Second, it is implausible that the male applicant would not have been trusted because he was hired by the SLAF, was promoted three times and was responsible for communications and public relations at a sensitive base. Finally, the documentary evidence indicates that Muslims do not typically encounter discrimination in the armed forces. Moreover, the male applicant would not have been suspected of being a non-Muslim disguised as a Muslim because he had a SLAF identity card in his Muslim name.
[3] With respect to the documents filed by the applicants, the Board found it implausible that the SLAF would allow eight months to lapse before inquiring into the male applicant's absence, as indicated by the Court of Inquiry document dated October 8, 1997. With respect to the newspaper articles by Iqbal Athas, the Board found it implausible that reference would be made to personnel under open arrest and not to the desertion of a commissioned officer who had already been interrogated.
[4] The Board also doubted the circumstances of the male applicant's escape. Specifically, it did not believe that non-commissioned personnel and someone at the same rank as the male applicant could have removed him from his cell or that Mohammad would have risked his job and life in return for a favour of Rs. 5,000 two years earlier. In addition, the Board found it implausible that the male applicant could have stayed in hiding in relatives' homes for such a long period and that he would have been able to leave Sri Lanka from the country's main airport, accompanied by his wife and child, undetected.
[5] With respect to the female applicant, the Board concluded as follows:
| Given our above findings, we do not find credible the adult female's testimony that she was picked up by three men in a jeep, one of whom was an Air Force officer. We find on a balance of probabilities that she was not interrogated about her husband's whereabouts. It follows that we find not credible her evidence that she was sexually molested by the interrogators. We find not credible her evidence that throughout the nine months her husband was in hiding she did not hear from him. If the husband felt reasonably safe staying with relatives, it is not reasonable that at least one of these relatives would relieve her anxiety over such a long period of time and find some way to tell her where he was. We find it not credible that if her husband escaped in March and was wanted by the Air Force for investigation of sabotage that it would not be until August, six months later, that she would receive her first and only visit from the security forces. We do not believe her testimony. Given our grave credibility concerns with the adult female's testimony, the panel finds it unnecessary to review the Refugee Division's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution, on her behalf. |
[6] Consequently, the Board determined that there was no serious possibility that either the male or the female applicant would be persecuted if they returned to Sri Lanka. Furthermore, it concluded that the minor applicant was too young to be considered at risk except in connection with her parents.
[7] With respect to the Board's general appreciation of the facts and its credibility findings, I am not satisfied, upon reviewing the evidence, that the specialized tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[8] More specifically, concerning the applicant's allegation that the Board erred because it did not consider whether the male applicant's desertion from the SLAF constituted a political opinion which could result in persecution within the meaning of the Convention, I am of the opinion that the Board did not consider this issue because it did not believe that the male applicant had deserted from the SLAF. The Board stated, at page 3 of its decision:
| In submissions, counsel directed the panel's attention to a series of documents entitled Base Routine Orders, Sri Lanka Air Force, China Bay. One of the documents is a Court of Inquiry document to investigate the illegal absence from duty of three personnel, one of whom is the adult male claimant. The Court of Inquiry was set for the date of October 8, 1997. Given that it is the claimant's testimony that he went into hiding in March 1997, it is implausible that the Air Force would allow eight months to lapse before enquiring into his absence. [Footnote omitted.] |
[9] In my opinion, this statement, taken on its own, is ambiguous. It could mean that the Board disbelieved that the applicant deserted in March 1997 or that it doubted the authenticity of the Court of Inquiry document itself. Later on in its decision, however, the Board made a general finding of non-credibility. It concluded, at page 5 of its decision:
| We have found implausibilities in all the material aspects of the male claimant's testimony. We find this testimony neither credible nor trustworthy. We find on a balance of probabilities that the adult male claimant was not tested for loyalty and was not under arrest by the SLAF. We find on a balance of probabilities that he was not 'saved' by Mohammad and that he was not in hiding for nine months. |
[10] Such a finding can reasonably be extended to all relevant evidence emanating from the male applicant's testimony, including the Court of Inquiry document. Therefore, I think that the decision, taken as a whole, indicates that the Board disbelieved not only the male applicant's account of his alleged desertion, but also the fact of the desertion itself. In my opinion, this was a conclusion that was reasonably open to the Board. Therefore, I do not think it erred by not considering whether the alleged desertion, in and of itself, would result in persecution.
[11] The only other issue raised before me by the applicants has to do with the Board's power to take notice of facts. In its decision, the Board stated that "[f]rom its knowledge of Sri Lankan claims and the documentary material on Sri Lanka, the panel is aware that it is the army who would carry out the arrests and detentions of Tamil civilians". According to the applicants, this information is not within the Board's specialized knowledge and they were not notified of the Board's intention to take notice of this information.
[12] Although the Board did not refer to any specific documentary material in making its statement about the SLA, there is evidence in the Certified Record pointing to the army as the principal perpetrator of abductions and extra-judicial killings.1 Therefore, I think that this information was within the specialized knowledge of the Board and that it is the type of information of which the Board is authorized to take notice under subsection 68(4) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[13] Moreover, I am satisfied that the Board gave notice to the applicants that it intended to take notice of this information and that it afforded them a reasonable opportunity to make representations with respect thereto, as required by subsection 68(5) of the Act.2 At page 343 of the Certified Record, the Board commented:
| The panel understands that it is the duty of security forces in areas of conflict, if Tamils have to be arrested or whatever it is, it generally falls to the security forces, and I understand that to be the land-base security forces, . . . |
[14] At page 344, the male applicant's counsel asked:
| Documentary evidence, or what we know about the operations of the Sri Lankan security personnel would indicate that land-based forces would engage in this sort of operation rather than the air force personnel, so can you give us some explanation as to why you think you were called upon to engage in this sort of operation? Why do you think they picked an air force officer to engage in this work? |
[15] Likewise, at page 364, the Board stated:
| Yes. The earlier question about land-based forces rather than air force doing the abducting of Tamils, you said that "They were trying me out for loyalty." But still don't know why the air force was involved rather than the army. Why did the air force go into the area to abduct Tamils? Why? |
[16] In my opinion, the Board made the applicants aware of its intention to take notice of the information in the documentary evidence that it was the army rather than the air force which was involved in abducting Tamils. The Board gave the male applicant the opportunity to explain why air force personnel would have been involved in such an operation, but found his explanation not to be credible. Therefore, I do not think that the Board violated section 68 of the Act.
[17] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
May 17, 2000
__________________
1 See, for example, the Certified Record at 157-159 (Government's response to widespread "disappearances" in Jaffna ), 164 (Sri Lanka: Highest Number of "Disappearances" Reported Since 1990), 175 (UNHCR Background Paper on Refugees and Asylum Seekers from Sri Lanka), 217 and 227 (Sri Lankan Tamils, the Home Office and the Forgotten War), 249 (Sri Lanka: Internal Flight Alternatives: An Update).
2 See, for example, Portilla v. Minister of Citizenship and Immigration (May 29, 1998), IMM-4110-97 (F.C.T.D.).